Criminal Law

By Claire Osborne

01.08.19

The abortion law reform that is 119 years late

“I believe the time has come for us to be respectful in the debate but to also recognise that it’s time for change.”[1]

In NSW abortion is still included in the Crimes Act 1900 (NSW), and has been a crime since 1900, punishable by up to ten years imprisonment. Most recently, in 2018 a woman was prosecuted for taking drugs, purchased online, to induce an abortion. In 2006, a doctor was prosecuted for the first illegal abortion in 25 years.

The Reproductive Health Reform Bill 2019, introduced by Independent MP Alex Greenwich, and co-sponsored by members from the Liberal Party, Labor, the Greens, the Nationals, the Animal Justice Party and a handful of independent MPs, is set to be the first co-sponsored legislation ever introduced into the NSW Legislative Assembly, with more co-sponsors than any other piece of legislation in NSW Parliament history.[2] The proposed legislation will make NSW the final state to complete the task of decriminalisation of abortions, a move that is long overdue to ensure women in NSW the fair and equal right to accessing healthcare.

Perhaps had the NSW laws been amended or abolished earlier, following suit with the other states and territories, women and doctors could have avoided both prosecution and the potential of harming themselves through the administration of ‘black market’ abortion drugs. Similarly to many other political debates which are currently seen in modern media aiming to regulate social issues, women will not stop having abortions, and as such it is important that women are able to make the decision about having an abortion in a safe and judgment free environment. Without this bill being introduced, women in NSW can only access abortions if they receive approval from a doctor that the procedure is necessary to preserve the woman involved from serious danger to her life or physical or mental health.[3]

The laws surrounding abortion in NSW have been described as archaic, out of touch and out of date, and harmful to women. The legislation which is being proposed will remove abortion from the 119 year old Criminal Code and create a separate Act to regulate the procedure. The bill proposes to allow abortion on request for women up to 22 weeks’ gestation performed by a registered doctor, while women whose pregnancies are beyond 22 weeks would need the consent of two doctors.[4] Pursuant to the bill, a doctor must administer the abortion. The bill will also specifically state that women who have abortions are not committing a crime. If a doctor does not wish to perform an abortion for a woman, they must refer the patient to a doctor who will perform the procedure.

The passing of this bill will aid in removing stigma and legal uncertainty due to its current association with the Crimes Act. The bill will ensure not only that women have access to safe and legal abortions but that doctors have clarity regarding the legal implications (or proposed lack thereof) of performing abortions. Furthermore, the passing of the bill is monumental in the fight for women’s rights.

“It’s past time for women to have the right to make decisions about their own bodies. It’s time for abortion law reform.”[5]

[1] Brad Hazzard as quoted by Australian Associated Press, ‘NSW Set to decriminalise abortion as health minister says its time for change’< https://www.theguardian.com/australia-news/2019/jul/28/nsw-set-to-decriminalise-abortion-as-health-minister-says-its-time-for-change >

[2]Alexandra Smith, ‘Historic abortion bill with 15 co-sponsors to be introduced in NSW’ <https://www.smh.com.au/politics/nsw/historic-abortion-bill-with-15-co-sponsors-to-be-introduced-in-nsw-20190729-p52brj.html>

[3] R v Wald [1971] 3 DCR (NSW) 25.

[4] Above n 2.

[5] Greens MP Jenny Leong as quoted in above n 1.